Just at the deadline for responding to the AAPS action to intervene in lawsuits challenging the Provider Conscience Clause, the Obama Administration started rulemaking to rescind the Clause completely.

This signals the intention of the Administration to refuse to enforce laws duly passed by Congress to protect medical professionals against discrimination for refusing to participate in procedures that violate their conscience, write Newt Gingrich and Rick Tyler (Newsmax.com 3/16/09).

These laws include the 1973 “Church Amendments,” the 1976 Public Health Services Act Amendment, and the 2004 “Hyde-Weldon Amendment.” The last prohibits certain federal funds from going to agencies or programs that discriminate against providers who decline to offer or refer for abortions.

Former Health and Human Services Secretary Mike Leavitt said the Conscience Clause was necessary to protect against growing intolerance for those acting on certain religious beliefs.

Sister Carol Keehan, president of the Catholic Health Association, said “We have seen a variety of efforts to force Catholic and other healthcare providers to perform or refer for abortions or sterilizations.”

The rule places no restrictions on any legal medical procedure. The Obama Administration, however, referred to comments asserting that “individuals could be denied access to services, with effects felt disproportionately by those in rural areas or otherwise underserved” (Steve Ertelt, LifeNews.com 3/6/09).

Apparently, the “right” of some to receive a service implies the obligation of others to provide it, regardless of their opinion about the morality or harmfulness of the procedure.

At a meeting of the UN Commission on the Status of Women (CSW), a representative of President Obama denied that abortion has any negative effects on women. In response to a question about the scientific evidence of detriment to the lives and health of women, Ellen Chesler dismissed the evidence as “unreliable because it has ideological elements” (Steven Ertelt, LifeNews.com 3/12/08). Chesler is former senior fellow at the Open Society Institute founded by George Soros, where she directed a $35 million “reproductive rights” program.

The evidence included three studies published in 2008 from the U.S., New Zealand, and Australia. These showed a 30 percent higher incidence of depression and other mental-health problems, a 120 percent increase in risk of alcohol abuse, and a 79 percent increase in risk of drug abuse in women who had had an abortion.

Obama also supported $50 million in funding for the United Nations Population Fund (UNFPA), which is complicit in using forced abortions and sterilizations to enforce China’s one-child policy, state Gingrich and Tyler.

The deadline for the 30-day comment period is April 9, 2009. You can submit comments to proposedrescission@hhs.gov. Put “Rescission Proposal” in the subject line of your email. You can also submit comments through www.freedom2care.org.

Additional information:

• AAPS comments on Bush Administration Provider Conscience Clause
• AAPS comments filed with Family Research Council and others
• “New Study Supports Abortion/Breast Cancer Link,” AAPS News of the Day 11/1/07.
• “Induced Abortion and Risk of Later Premature Births,” by Brent Rooney and Byron C. Calhoun, J Am Phys Surg, summer 2003.

The Bush Administration has proposed a rule that would deny federal funding to medical facilities that discriminate against employees who choose not to provide services they deem to be morally wrong—such as performing abortions or making abortion referrals.

Unlike rules that ban discrimination on the basis of race, ethnicity, gender, or sexual preferences, this one is called an attack on “choice.” Sen. Patty Murray (D-WA) and Sen. Hillary Clinton (D-NY) objected to the proposed rule.

It is feared that the wording could be expanded to include oral contraceptives or the “morning after” pill (Seattle Times 8/25/08).

U.S. Health and Human Services Secretary Mike Leavitt says the regulation is about abortion, not contraception. But the meaning may depend on what an abortion is. And that depends partly on when pregnancy begins. In 1965, the American College of Obstetrics and Gynecology (ACOG) decreed that pregnancy begins after implantation, thus avoiding the charge that its members were encouraging, if not performing, early-term abortions in prescribing non-barrier contraceptives (PRI Weekly Briefing 8/12/08).

Karen Brauer, president of Pharmacists for Life, expects that members of her group would like to see states lose federal funding if they pass laws forcing pharmacists to fill prescriptions for what they consider to be abortofacients. And Catholic hospitals would like to be freed from requirements that they offer emergency contraception to victims of sexual assault.

Planned Parenthood Action Fund and MoveOn.org Political Action delivered 325,000 signatures of protest to Leavitt, but he signified that he planned to go forward with the rule, citing the need to protect medical professionals.

Their right to decline certain actions, including certain types of speech, is a “fundamental freedom: that “every American values,” Leavitt said (Stephanie Simon, Wall St J 8/22/08).

Leavitt believes that that freedom is threatened. On Aug 8, he wrote in the HHS blog: “Several months ago I became aware that certain medical specialty groups were adopting rules which potentially violate a physician’s right to choose whether he or she performs abortion. I wrote to the organizations in question, protesting their actions. Frankly, I found their responses to be dodgy and unsatisfying. I sent another letter, more of the same.”

This weblog notes that the proposed rule is open for comment for 30 days, and provides a link.

ACOG has been heavily criticized for its November 2007 Ethics Committee Opinion entitled “The Limits of Conscientious Refusal in Reproductive Medicine.” In addition to stating that physicians had the duty to refer patients for procedures they themselves were not willing to perform, it wrote: “Physicians with moral or religious objections should either practice in proximity to individuals who do not share their views or ensure that referral processes are in place.”

A newly publicized twist on the question of what an abortion is concerns what ACOG terms a “labor-inducing abortion.” Although ACOG does not mention live birth as a complication in its patient education materials, this is the issue addressed by the Born-Alive Infant Protection Act passed by the U.S. Congress in 2002.

Jill Stanek, R.N., gave testimony that infants who survived this procedure were placed in the soiled utility room to die; some lived for as long as 8 hours. She recounted having cradled one infant for 45 minutes as it struggled to breathe, and finally died.

What would have happened to a nurse or physician who had resuscitated such an infant, before this Act was passed?

While most people consider it infanticide to dispose of a baby who survives an abortion attempt, then-Illinois state senator Barack Obama considered the Born-Alive Infant Protection Act to be a ploy to undercut Roe v. Wade—one of many reasons he gave for blocking the identical bill in the Illinois Senate.

Other threats to freedom of conscience:

The California Supreme Court ruled, in Benitez v. North Coast Women’s Care Medical Group, that doctors have an obligation to provide medical care regardless of their religious views. The case concerned a lesbian woman who was refused artificial insemination on the basis that the physicians had determined to provide in vitro fertilization only to married patients (LifeNews.com 8/19/08).

The British parliament is debating a bill that would imprison staff at pregnancy centers for up to 2 years for counseling against abortion—if, in the opinion of the British government, the counseling was misleading or inaccurate. No similar penalties have been suggested for misleading pro-abortion counseling (LifeNews.com 8/27/08).

The Yale Human Rights and Development Law Journal has published an article by Carter Dillard, entitled “Rethinking the Procreative Right,” arguing that because it is not specifically enumerated in the Bill of Rights, the right to procreate is limited to one child. The only absolute reproductive right, he argues, is the right not to procreate at all. The right to bear children must be “balanced” against other rights—of other people, of future generations, of nature, of the wilderness, and of nonhuman species (LifeNews.com 7/23/08).

Additional information:

• Medical Ethics—Abortion—Freedom of Conscience

On June 19, a physician caught in the act of performing a sex-selection abortion was arrested in a town near New Delhi and remanded into judicial custody for 14 days, along with the woman’s husband. They were charged with violating the Pre-Natal Diagnostic Techniques and Medical Termination of Pregnancy Acts.

Because of frequent female infanticide and selective abortion of girls, the birth ratio was 927 girls born for every 1,000 boys in 2001, down from 962:1,000 in 1991. The severe shortage of brides in the Haryana region has resulted in a black market in women from other regions who are brought in and sold into marriage, according to a Meri News report.

Prime Minister Manmohan Singh called sex-selection abortions a “national shame.” He called such abortions “inhuman, uncivilized and reprehensible” (LifeNews.com 6/20/08).

As many as 200 million girls may have been killed worldwide in this way, mostly in Muslim and Asian countries. The rate is increasing because of ultrasound technology that permits sex identification around 18 weeks.

Using data from the U.S. 2000 census, researchers have noticed a male sex bias in U.S.-born children of Chinese, Korean, and Asian Indian parents. The effect of birth order is striking. There is a normal sex ratio, 106 girls to 100 boys, for first births. If the first birth is a son, the sex ratio of second children is also normal. But if the first child is a girl, the
second child tends to be a boy. And if the first two are girls, the third is 50% more likely to be a boy.

Authors Douglas Almond and Lena Edlund conclude that sex-selection abortion was being practiced in America as early as a decade ago.

According to a Zogby/USA today poll, 86% of Americans favor banning this practice, which is seen by many as the ultimate form of sex discrimination. Every year that he was in the U.S. Senate, Jesse Helms introduced a bill providing that “it shall be illegal to perform an abortion for the sole purpose of sex selection” (Population Research Institute Weekly Briefing 4/15/08).

The American College of Obstetrics and Gynecology (ACOG) states that “helping patients to choose the sex of their offspring to avoid serious sex-linked genetic disorders is considered ethical for doctors, but participating in sex selection for personal and family reasons, such as family balancing, is not.”

Since, however, it would be unethical to withhold medical information, such as the sex of the fetus, from patients who request it, it “may be impossible to avoid unwitting participation in sex selection.”

ACOG reassures physicians that “they are not obligated to perform an abortion, or other medical procedure, to select fetal sex” [emphasis added], according to a Feb 1, 2007, news release.

The ACOG Committee on Ethics Opinon No. 360, February 2007, is silent on the issue of whether physicians ought to refer patients to other providers who do not have qualms of conscience about such abortions.

A controversial later opinion, No. 385, issued November 2007, entitled “The Limits of Conscientious Refusal in Reproductive Medicine,” states that “conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients, negatively affect a patient’s health, are based on scientific misinformation, or create or reinforce racial or socioeconomic inequalities.” Pro-life physicians, it asserts, should not practice in “resource-poor areas,” but rather “in proximity to individuals who do not share their views.”

Parenthetically, this opinion is being reconsidered because of concerns that pro-life physicians could be decertified for “violation of ACOG rules and/or ethics principles,” say for failure to assure timely access to abortion or emergency contraception (AM News 4/14/08).

Trying to adhere to ACOG directives could create dilemmas. Sex-selection abortions would be unethical if they reflect the belief that males are “inherently more valuable than females” and thus violate the “ethical principle of equality between the sexes,” or perhaps because “the very idea of preferring a child of a particular sex may be interpreted as condoning sexist values and, hence create a climate in which sex discrimination can more easily flourish.” Yet, “it is often impossible to ascertain patients’ true motives for requesting sex-selection procedures.” Perhaps there are “financial” or “cultural” reasons that are not “personal and family reasons.” In any event, the committee concluded that the position of never participating in sex selection was “too restrictive.” And of course there is always the possibility that a woman also has a reason for abortion that is not related to sex selection.

Sex-selection abortion could create a major challenge for the hierarchy of ACOG values and “core” elements of the practice of medicine. According to Committee Opinion No. 385, these include patient autonomy; “maximum accommodation” to “authentic claims” of conscience; distributive justice; sexual equality; and safe, timely, and financially feasible access to abortion.

Additional information:

• “Canadians Debate Requiring Doctors to Do Abortion Referrals,” AAPS News of the Day 5/22/07.
• “Demographic Stresses Increase,” AAPS News of the Day 12/27/06.
• “U.S. Criticizes China’s One-Child Law,” AAPS News of the Day 12/23/04.

 Many highly regarded hospitals in the U.S. routinely diagnose brain death without following the guidelines promulgated in 1995 by the American Academy of Neurology (AAN), according to a survey presented at the American Neurological Association (ANA) annual meeting (Kurt Samson, Neurology Today 11/6/07).Researchers at the Massachusetts General Hospital surveyed the top 50 neurology and neurosurgery departments nationwide; 82 percent responded. Results showed that “adherence to the AAN guidelines varied widely, leading to major differences in practice, which may have consequences for the determination of death and initiation of transplant procedures,” said Dr. David Greer.

Apnea testing was omitted by 27 percent; still more distressing is that many fail to even check for spontaneous respirations.

“We’re hoping to present a persuasive case for new standards,” said Dr. David Greer.

“In plain, straight talk,” writes Dr. Lawrence Huntoon, editor-in-chief of the Journal of American Physicians and Surgeons, “the survey indicates a high likelihood that some patients are being ‘harvested’ in some hospitals before they are dead! In hospitals with aggressive transplant programs (hospitals make a huge amount of money on transplant cases), making sure a patient is dead before going to the ‘harvesting suite’ may be viewed as a minor technicality/impediment.”

In another poster at the AAN conference, Dr. Eelco Wijdicks reported that the “physical deterioration of brain matter once referred to as ‘respirator brain’ has become an anomaly in today’s ‘modern transplant era’—where temperature and other variables of new cadavers must be carefully monitored and controlled to keep organs viable.”

In the past, he noted, patients had often been kept on respirators for weeks, and their brains [but apparently not their livers] had turned to liquid.

These days, microscopic analysis may be needed to detect the changes. “Variable neuronal loss was noted in the brain and brainstem samples, but total necrosis was rarely observed”—because of “earlier preservation of the brain and more efficient organ harvesting programs.”

“It’s just a matter of basic pathology that needs to be recognized in this era of transplantation,” said Dr. James Bernat, professor of neurology at Dartmouth.

Additional information:

• Brain death and organ transplantation

There’s a new kind of brokerage firm in our brave new world: agencies that assemble databases of young women and market their eggs to customers who want a baby and can’t produce one themselves.

Some offer photographs and information about hobbies, education, and religion, along with health screening, so customers can pick the “donor.” Some consider “donor shopping” for “designer babies” unethical, and match the donor on the basis of a few genetic traits.

The broker charges around $16,500, which includes the donor’s fee of $4,000 or more. A woman who has successfully “cycled” three or four times can command up to $8,000.

A donor must inject herself with fertility drugs every day for 6 weeks. Donor #8447 produced 16 eggs during one cycle. Some of the embryos that were created were implanted, and some frozen.

“I think it’s great,” she said. “Men have always been able to spread their genes. Now I can spread my genes” (Minneapolis Star-Tribune 10/22/07).

The outcome of these “miracles for sale” is not always happy. Some clients have held a newborn in their arms and said “I don’t feel attached to my child,” reported University of Minnesota psychologist Linda Hammer Burns. Or years after children are born, divorcing parents use the means of their conception as emotional weapons in bitter legal fights (ibid.).

An unasked question is how many years of her own potential fertility has donor #8447 sold? There is apparently no limit. Tests for infectious diseases that could be transmitted to surrogate or baby are among the few regulations governing egg and sperm donation in the U.S.

Infertile women who create frozen embryos tend to have a view of them that differs from that of donor #8447.

“Our data suggest that for most of the individuals who create embryos in hopes of having a baby, the preference is not that their remaining embryos have a chance at life, but rather that they be used in a way (research, and if not, simply destruction) that ensures that they do not,” write Anne Drapkin Lyerly of Duke University Medical Center and Ruth R. Faden of the Johns Hopkins Berman Institute of Bioethics (Science 2007;317:46-47).

More than half would donate their embryos for research, apparently believing that “scientific progress justifies the instrumental use of early human life.” Only around 20% would donate to another couple, suggesting that “there are deep responsibilities to one’s own embryos…that preclude allowing them to develop into children without the knowledge, participation, or love of those who created them.”

About 400,000 human embryos are currently cryopreserved.

Additional information:

• “Purchase of Human Eggs Creates Ethical Dilemma,” AAPS News of the Day 4/5/07
• AAPS Resolution Affirming the Sanctity of Human Life, 2003